When it comes to divorce, our family law system is failing us

The Calgary Herald by Brynn Doctor 18 November 2016

As a mom, stepmom, partner to a divorcee, hopeful adoptive parent, communications consultant for separated families, and law student, I have had more than my fair share of exposure to our family law system.

Through all these roles, I have come to understand one thing very clearly: our family law system is woefully inadequate.

While roughly 40 per cent of marriages in Canada end in divorce — and that doesn’t include common-law families that break down – nearly 80 per cent of people engaged in a family law issue do not use a lawyer. For the vast majority of people, this is a product of economics. A family in breakdown is doubling their expenses while maintaining or lowering their combined income. Paying $2,000 for a retainer and being billed $400 an hour is simply not feasible for most households.

Even for those who can afford a lawyer, the billable-hour model hardly encourages trust and goodwill between clients and lawyers. While clients generally wish to settle their conflicts as quickly and favourably as possible, lawyers are incentivized through high billing targets to drag the file along.

There is a unique kind of fury brought about when receiving a bill in the hundreds or thousands of dollars for phone calls and emails, each billed within 1/10th of an hour. And all of the risk is on the client should a file take more time than originally estimated.

Of course, it’s not just clients who become frustrated. As firms become more competitive, billable targets are consistently increasing, pushing lawyers to work longer hours on stressful files without adequate support. Burnout in the field of family law is high, and many law students and lawyers are scared off from entering the field by stories of difficult clients and high-conflict counsel.

There is a unique kind of fury brought about when receiving a bill in the hundreds or thousands of dollars for phone calls and emails, each billed within 1/10th of an hour

Students who do want to enter the field struggle to find principles who have the time and energy to train them, and even if they succeed, they are taught to practice family law within the same broken model that is currently failing clients and lawyers alike.

So how do we fix it?

First, we move away from billable hours. By taking the time to scope out services at the outset, clients are discouraged from vindictive litigation that falls outside the scope of services initially agreed to, and lawyers are encouraged to work as efficiently as possible to increase their profit margins.

While it’s often argued that family law is wildly unpredictable, analysis of case law by companies such as Mira Law Group show that to be a myth. Technology allows lawyers to track their outcomes, and quickly perfect the art of providing fair, upfront pricing to their clients while maintaining reasonable profit margins.

Lower, more accurate rates mean more families can access legal services, lawyers can increase productivity without focusing on billable targets, and clients can trust their lawyers to be working toward their common goals. More efficient, less litigious service also allows us to streamline our courts, ensuring matters are heard sooner, or keeping clients out of court altogether.

Second, we recognize that while a family breakdown often involves legal problems, the breakdown itself is largely a social – not a legal – issue. Increased co-operation with social services and supports will allow clients to get the emotional assistance they need to process their separations, and leave the lawyers to focus on the law.

No judge or lawyer, no matter how well-intentioned, can do the work necessary in the time it takes to process a file to help families heal and parents learn to communicate with one another.

The best thing we can do is invest in teaching new lawyers entirely new ways of thinking about what family law is and how it can be practiced. With 80 per cent of the market currently unrepresented, there is no telling how new models of practice could change the face of family law in Canada.

Brynn Doctor is a communications coach and third-year law student at the University of Calgary.